The Flag: Protected speech, medical malpractice, and more
Vol. 79, No. 4 / July - August 2023
W. Dudley McCarter
W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde.
WORK PRODUCT PROTECTION IS WAIVED WHEN A PARTY VOLUNTARILY DISCLOSES THE PROTECTED MATERIAL TO AN ADVERSARY
Hill v. Wallach, No SC99650 (Mo. banc 2023).
Kristine and Dennis Hill filed a lawsuit in the circuit court of St. Louis County, alleging that Mercy Rehabilitation Hospital was negligent in failing to repair a malfunctioning hospital bed that caused Kristine Hill to sustain back and spine injuries. During discovery, Mercy moved to compel production of documents – including settlement documents – relating to a motor vehicle accident involving Kristine Hill following the incident at Mercy. The Supreme Court of Missouri held that the settlement documents were not protected by the work product doctrine.1
Federal courts have held that work product protection is waived when a party voluntarily discloses the protected material to an adversary.2 This is because such a disclosure is “inconsistent with the purpose of the work-product doctrine – to protect the adversarial process.”3 This type of disclosure “waives the work product protection as to items actually disclosed, even where disclosure occurs in settlement.”4
Once the Hills disclosed the documents to any adversary, they waived work product protection of the settlement release and email correspondence in the motor vehicle accident case and any subsequent case in which the documents would otherwise be discoverable.5
The work product doctrine is “an intensely practical [doctrine], grounded in the realities of litigation in our adversary system.”6 There is no persuasive precedent supporting its application to settlement documents between adversaries, even when sought by a later adversary in an unrelated case.
DISMISSAL OF MEDICAL MALPRACTICE SUIT REQUIRED DUE TO UNTIMELY SERVICE
Brick v. Koeppen, SD 37767 (Mo. App. S.D. 2023).
Scott J. Brick, D.O. and Lake Regional Health Systems sought a permanent writ of mandamus compelling the Hon. Aaron Koeppen, judge of the Circuit Court of Camden County (“Respondent”), to dismiss Plaintiff Wanda Hannon’s medical malpractice suit against them. Brick and Lake Regional argued the Respondent was required to dismiss Hannon’s medical malpractice suit against them under § 516.105 because Hannon failed to serve them within the 180-day time limit prescribed by the statute.7
The parties did not dispute that the language of § 516.105.2 requires a plaintiff to make service on a defendant within 180 days of filing the petition if service is being made after the statute of limitations. There was also no dispute that Brick and Lake Regional were served more than 180 days after the lawsuit was re-filed and after the statute of limitations period had run.
The Missouri Court of Appeal-Southern District held that there is no conflict between § 516.105.2 and Rule 54. While Rule 54 requires that service be made “promptly” (i.e., with due diligence) and is silent as to the consequence of the failure to make prompt service, § 516.105.2 prescribes the consequence (i.e., dismissal) for failing to serve a defendant after a period of time that is not prompt (within 180 days of the filing of the petition after the statute of limitation has expired).
The statute’s specific deadline for serving defendants in medical malpractice cases does not contradict Rule 54’s requirement that service be prompt. Rule 54 and § 516.105.2 exist in harmony, and there is no contradiction between a rule that requires a plaintiff to act with due diligence in effecting service and a statute that requires dismissal if service on defendants in medical malpractice cases, who are generally easy to locate, is not made within 180 days after the filing of the petition and after the expiration of the statute of limitations.
The court determined Hannon does not get to choose between complying with Rule 54 or the statute; Hannon was required to comply with both. In this case, service was neither prompt, as required by Rule 54, nor in compliance with the time limitation of § 516.105.2, since it was made over 200 days after the filing of the petition and after the two-year statute of limitations had expired. Because Hannon failed to serve Brick and Lake Regional within the time prescribed in § 516.105.2, Respondent had no discretion to deny Brick and Lake Regional’s motion to dismiss Hannon’s suit.
The Court ordered Respondent to dismiss Hannon’s petition for medical malpractice with prejudice.
FORUM NON CONVENIENS SHOULD BE APPLIED WITH CAUTION
Crawford v. Family Tree, Inc., No WD85628 (Mo App. W.D. 2023).
Mary and Jason Crawford appealed the trial court’s judgment dismissing their civil case for damages against Family Tree, Inc. on the basis of forum non conveniens. The Missouri Court of Appeals-Western District reversed the trial court’s judgment.8
The doctrine of forum non conveniens permits a trial court to dismiss an action if the forum is seriously inconvenient and there is a more appropriate forum available to the plaintiff, even if the venue and jurisdiction are otherwise proper.9 “The doctrine is to be applied with caution and only upon a ‘clear showing of inconvenience and when the ends of justice requires it.’”10
A trial court should weigh six important, but non-exclusive, factors in determining whether a suit should be dismissed on the grounds of an inconvenient forum.11 They are: (1) the place where the cause of action accrued; (2) the location of witnesses; (3) the residence of the parties; (4) any nexus with the place of suit; (5) the public factor of the convenience to and burden on the court; and (6) the availability to the plaintiff of another court with jurisdiction over the cause of action that affords the plaintiff a forum for his or her remedy.12
The Court held that Family Tree failed to establish that the Riederer factors weighed heavily in its favor, and the trial court abused its discretion when it dismissed the cause of action on the basis of Missouri being an inconvenient forum for resolution of the matter.
Considering that forum non conveniens should be applied with caution and only upon a clear showing of inconvenience and when the ends of justice require it, the Court concluded that Family Tree did not make such a showing. The forum non conveniens factors do not weigh heavily in favor of dismissal, and Family Tree failed to establish that permitting the case to be tried in Jackson County, Missouri, would be oppressive to Family Tree or would impose an undue burden on a Missouri court.
TERRORIST THREAT IS NOT PROTECTED SPEECH
In the Interest of: DJTS, No WD85142 (Mo. App. W.D. 2023).
D.J.T.S. appealed a juvenile court’s judgment finding that he committed the delinquency offense of making a terrorist threat. He contended the juvenile court erred in finding him delinquent because his statements about shooting up a basketball game did not communicate a true threat and were protected by his constitutional right of free speech. The Missouri Court of Appeal-Western District affirmed the judgment in the case of In the Interest of: DJTS.13
Under the First Amendment, the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”14 “The protections afforded by the First Amendment, however, are not absolute.”. . . “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”15 “These ‘limited areas’ include speech expressed as part of a crime, obscene expression, incitement, and fraud.”16
Accordingly, “the First Amendment allows states to ban ‘true threats.’”17 “’True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”18
The record established that more than one individual who heard D.J.T.S.’s statement believed them to be a true threat.19 Moreover, at the time he made the statements, D.J.T.S gave no indication that he intended the threats as a joke or exaggeration. Consequently, D.J.T.S’s statement to students that he was going to shoot up the basketball game went beyond the scope of protected speech.20
1 Hill v. Wallach, No SC99650 (Mo. banc 2023).
2 United States v. Sanmina Corp., 968 F.3d 1107, 1120 n.7 (9th Cir. 2020).
3 Id. at 1120.
4 In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, 860 F.2d 844, 846 (8th Cir. 1988).
5 Eagle Compressors, Inc. v. HEC Liquidating Corp., 206 F.R.D. 474, 480 (N.D. Ill. 2002).
6 United States v. Nobles, 422 U.S. 225, 238 (1975).
7 Brick v. Koeppen, SD 37767 (Mo. App. S.D. 2023).
8 No. WD85628 (Mo App. W.D. 2023).
9 Adkins v. Hontz, 280 S.W.3d 672, 676 (Mo. App. W.D. 2009); Campbell v. Francis, 258 S.W.3d 94, 97 (Mo. App. W.D. 2008).
10 Campbell, 258 S.W.3d at 97 (quoting State ex rel. Ford Motor Co. v. Westbrooke, 12 S.W.3d 386, 394 (Mo. App. S.D. 2000)).
11 State ex rel. Chicago, Rock Island & Pac. R.R. Co. v. Riederer, 454 S.W.2d 36, 39 (Mo. banc 1970).
12 Riederer, 454 S.W.2d at 39.
13 No. WD85142 (Mo. App. W.D. 2023).
14 State v. Metzinger, 456 S.W.3d 84, 95 (Mo. App. E.D. 2015) (citation omitted).
16 Novak v. City of Parma, 932 F.3d 421, 427 (6th Cir. 2019).
17 Metzinger, 456 S.W.3d at 95 (citing Virginia v. Black, 538 U.S. 343, 358 (2003)).
18 Black, 538 U.S. at 359.
19 Novak, 932 F.3d at 427.